NLRB Proposes To Improve Representation Case Procedures

By Kamer Zucker Abbott

August 21, 2019

The National Labor Relations Board (NLRB or Board) has issued a Notice of Proposed Rulemaking to amend its rules and regulations governing the filing and processing of representation petitions. The Board proposes to make changes in the following areas:

•    Blocking Charge Policy - the Board proposes replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.
•    Voluntary Recognition Bar - the Board proposes returning to the rule of Dana Corp. (2007). For voluntary recognition under Section 9(a) of the National Labor Relations Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.
•    Section 9(a) Recognition in the Construction Industry - the Board proposes that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel (2001).

In announcing the proposed amendments, Board Chairman John F. Ring stated: “There are few more important responsibilities entrusted to the NLRB than protecting the freedom of employees to choose, or refrain from choosing, a labor organization to represent them, including by ensuring fair and timely Board-conducted secret ballot elections. We believe that the changes we propose today further the goal of protecting this vital freedom. Our proposals are, however, subject to comment, and we look forward to reviewing the public’s input with an open mind.”

Public comments regarding the Notice of Proposed Rulemaking must be received by the Board by October 11, 2019. We will continue to keep you updated on this matter.